RUTHFULLY YOURS

If the New York Times is correct, it looks like Akayed Ullah, the Bangladeshi jihadist whose bomb detonated prematurely at the Port Authority Bus Terminal near Times Square during the morning rush hour, is going to be charged with terrorism crimes in civilian federal court. He’ll be prosecuted by my former office, the U.S. attorney’s office for the Southern District of New York in lower Manhattan. The SDNY will be working the Joint Terrorism Task Force (mainly the FBI and the NYPD), just as these law-enforcement agencies are working together in the case of Saifullo Saipov, the West Side Highway jihadist who killed eight people and wounded a dozen others by ramming his rental truck into them a few weeks back.

Ultimately, this may be the right way to handle the case. But I do not understand the rush to bring Ullah into federal court.

Having been wounded by his improvised explosive device (likened to a pipe bomb, perhaps hidden in a vest), Ullah was taken into custody immediately after attempting the attack, a failed bombing in which a few people (other than Ullah) appear to have suffered minor injuries but, fortunately, no one was killed. He was no doubt grabbed by police from the NYPD and the Port Authority, with the feds coming in after the fact. Ullah apparently talked right after the attack, but it is not known (at least by me) whether he was read Miranda warnings. (I am betting he was not, since the “exigent circumstances” exception to Miranda would have permitted police to ask him whether there were any other explosives, and other questions along those lines, without advising him of his rights.)

Nevertheless, if he is going to be processed as a civilian defendant, police must have read him his rights in fairly short order — including his right not to speak to the police and to have an attorney present (i.e., to tell him not to say anything), on taxpayers’ dime, during any questioning. He will be presented in court, within a day or so, before a magistrate-judge on a complaint outlining the charges and probable cause supporting his arrest. He will be assigned counsel, and the court will advise him that he need not speak to government agents and probably should not say anything more if he has spoken to them already.

This is a foolish way to proceed.

We do not know if Ullah may lawfully be treated as an enemy combatant — i.e., whether he fits the definition of the enemy set forth by Congress in the post-9/11 Authorization for the Use of Military Force (AUMF). The agents are just starting their investigation. Preliminary indications are that they believe he was “inspired by ISIS” — which usually means he has no known operational ties to ISIS or al-Qaeda (the network from which ISIS broke away, and which is clearly covered by the AUMF). But we probably will not have a good read on that for a few days, at least.

So what’s the rush?

Let’s say the agents detain him for a few days so that he can be questioned without counsel and the agents can obtain any fresh intelligence he may have about other possible attacks. Legally, the worst thing that happens is prosecutors will not be able to use any statements he makes as evidence at his trial. But so what? The bombing attempt is on video and was apparently witnessed by scores of people. Prosecutors do not need a confession to convict this savage, but intelligence agents need to know any information he has that might help us prevent another attack.

There is a five-year statute of limitations on attempted bombing. Delaying Ullah’s presentation in court today or tomorrow would not prevent his being indicted sometime later. If the agents learn that he is not a member of a terrorist organization, he can be brought to court at that point and have counsel assigned. On the other hand, if it turns out he is an al-Qaeda or ISIS operative, the agents will have an opportunity to exploit him as an intelligence source for as long as he is useful. When that process is exhausted, he can be transferred to civilian court for prosecution.

The idea that even the best interrogator can fully mine the value of an intelligence source in just a few hours of post-arrest questioning under an exception to Miranda is preposterous. That is not how intelligence works. A good source can be useful for years (continuing to identify photographs, voices on wiretaps, coded jihadist language, etc.). In a few hours’ time, there is no way to get to the bottom of what the jihadist may know and how he may be a useful source.

The only way to keep the country safe is to obtain and exploit intelligence. We cannot provide security by waiting for attacks to happen and prosecuting in civilian court after people have already been killed.

I agree that, presumptively, when an attack happens in the United States, the jihadists should eventually be tried in civilian court. I would make an exception for alien enemy combatants in cases in which providing discovery to the defense under due-process rules could expose critical U.S. intelligence secrets. But unless and until we devise a better system for prosecuting terrorists (as I have recommended for years), these cases are clearly going to civilian court.

We do not have to be in a hurry to get them there, however. When the Obama administration instantly brought terrorists into civilian court without even considering whether they should be detained without trial or counsel under the laws of war, many of us were stridently critical because of the lost opportunity to collect intelligence. I do not see why President Trump should get a pass on this just because he is not afraid to say “radical Islamic terrorism.”

To repeat a point made previously, the 2001 AUMF badly needs an overhaul so we have an updated definition of who the enemy combatants are. But if we are dealing with an enemy combatant, he should be detained for intelligence purposes. And if we’re not sure whether he’s an enemy combatant, we should delay civilian prosecution until we are.